Effective legal protection
The guarantee of legal recourse against acts of public authority is regulated in the Federal Republic of Germany in Basic Law (GG) for every natural and private legal person and in Switzerland in Federal Constitution . When people speak of a guarantee of legal recourse , one of these specific provisions (legal recourse guarantee in the narrower sense) is more often meant than a conceivable comprehensive legal recourse guarantee. If “legal recourse guarantee” is used in this narrower sense, then - for the purpose of distinction - the designation right to the grant of justice is used for the broader meaning .
In the opinion of the Federal Constitutional Court and the teaching that followed it, there is a right to effective legal protection . The court is obliged to fully review the contested decision, both legally and factually. This fundamental right also has preliminary effects on the administrative procedure. According to this, even the authority has to act in such a way that the fundamental right to effective legal protection is not impaired further.
The fundamental right to effective legal protection (case law of the BVerfG)
According to the Federal Constitutional Court, Article 19 (4) guarantees a fundamental right to effective legal protection against acts of public authority, insofar as these interfere with the rights of the person concerned.
Article 19 (4) of the Basic Law contained a fundamental right to effective and as complete as possible judicial protection against acts of public authority. This includes "access to the courts, the examination of the request for a dispute in a formal procedure and the binding judicial decision". Citizens have a substantial right to judicial control that is as effective as possible.
Article 19 (4) of the Basic Law does not call for a court of law. “If procedural law opens up another instance, Article 19 (4) of the Basic Law guarantees the citizen effective judicial control in this respect as well […]. The appellate courts may not render an appeal opened by the respective legal system ineffective by the way in which they interpret and apply the legal requirements for access to a substantive decision and allow the complainant to run dry; access to the instances granted in the rules of procedure must not be made dependent on unfulfillable or unreasonable conditions or made more difficult in a way that can no longer be justified by factual reasons "
- Unreasonable requirements for the presentation of admissibility requirements for an appeal:
- The "requirements for the presentation of the reasons for admission are not made so difficult that they can no longer be met with reasonable effort even by an average lawyer who is not specialized in the relevant area of law [...] and thus the possibility of obtaining admission of an appeal , for the appellant there is nothing […]. This applies not only to the requirements for the presentation of the reasons for approval according to , but also in a corresponding manner for the interpretation and application of the reasons for approval of itself [...]. Incompatible with the requirement of effective legal protection is an interpretation and application of Section 124 (2) VwGO which makes access to the appeal and thus in a next step also to the revision more difficult, if it cannot be objectively justified, thus proves to be objectively arbitrary and thus makes access to the next instance unreasonably difficult ".
- According to a criminal panel may refrain from giving reasons for the decision on the appeal if it considers the appeal to be inadmissible or obviously unfounded. “It does not follow from this, however, that the decision itself eludes constitutional examination or that the standards of the examination should be relaxed. Rather, in such a case the decision is to be annulled if there are considerable doubts as to its compatibility with the complainant's fundamental rights ”. This is the case, for example, when the criminal panel obviously deviates from the case law of the BVerfG.
- Invalidity of the European Arrest Warrant Act:
- Due to the fact that the European arrest warrant cannot be judged under the European Arrest Warrant Act, the Federal Constitutional Court declared the law to be incompatible with Article 19 (4) of the Basic Law and null and void.
- To ensure effective legal protection, it is important, above all, that the judge has sufficient authority to examine the factual and legal side of a dispute so that he can remedy an infringement. However, the requirement of effective legal protection does not exclude the possibility of a different control density depending on the type of measure to be examined due to the granting of scope for design, discretion and assessment.
- Documentation requirement when aborting a recruitment process:
- application procedure . If the reason for the termination is not evident, it must be documented in writing. This follows from the requirement of effective legal protection, specifically not to make legal prosecution unreasonably difficult. guarantees the right to an
Verifiability of official decisions
"The citizen has the right to the most effective judicial control possible in all instances made available to him by the procedural rules [...], whereby it makes no difference whether it is an interference in protected legal positions or the denial of legally granted claims to benefits [...] . In principle, the guarantee of effective legal protection results in the courts' duty to fully review the contested administrative acts in legal and factual terms. This basically excludes a binding of the judiciary to actual or legal determinations and evaluations by other authorities with regard to what is lawful in individual cases. ”The legislature is therefore“ not free to grant official final decision-making powers. The effectiveness of the courts guaranteed by Art. 19 (4) S 1 GG, even the legislature must not give up too many or far-reaching judgments for entire subject areas or even areas of law. "
Prohibition of excessively long proceedings
The requirement of effective legal protection following from Article 19, Paragraph 4 of the Basic Law requires timely legal protection, i. H. "Disputed legal relationships are to be clarified in a reasonable time"
Inappropriateness is a question that can only be decided taking into account all the circumstances of the individual case. “The state cannot invoke circumstances that lie within its area of responsibility […]. The courts also have to take into account the overall duration of the proceedings and, as the duration increases, they have to endeavor to speed up the proceedings. "
Urgent legal protection
The requirement of effective legal protection also has an impact on the application of the legal provisions of emergency legal protection.
Judicial protection has to "anticipate the creation of fait accompli as far as possible, which can no longer be reversed if a measure turns out to be unlawful in a (final) judicial review".
- In the case of a restraint order, the following applies: "Where the urgency of an urgent application so requires, the court seised, if it obtains an opinion from the penal institution, must ensure the speed of communication necessary for a timely decision, for example by arranging for transmissions by fax, information by telephone requests that the prison sets the necessary short deadline and takes precautions to check and ensure that the statement is received on time ”.
The specialized courts are not allowed to “make excessive demands on the existence of a reason for an order”.
If the subsequent legal protection - including the temporary legal protection - were associated with unreasonable disadvantages, there is a special, qualified legal protection need for preventive legal protection with regard to the constitutional requirement of effective legal protection . With a hanging resolution , a temporary interim regulation that is self-terminating through the decision in the interim legal protection proceedings is therefore permissible (so-called express-urgent legal protection).
Suspensive effect of objection and complaint
“The suspensive effect of objection and action prescribed in accordance withfor the normal case is in this respect an adequate expression of the constitutional guarantee of legal protection. On the other hand, Article 19, Paragraph 4 of the Basic Law does not simply guarantee the suspensive effect of legal remedies in the administrative process. Predominant public concerns can justify temporarily deferring the legal protection claim of the holder of the fundamental right in order to initiate measures that cannot be postponed in the interests of the general good in good time. To order the immediate enforceability of an administrative act, a special public interest is required that goes beyond the interest that justifies the administrative act itself. "
- The refusal of urgent legal protection in residency proceedings can violate Article 19.4 of the Basic Law if the respect for private life required under not taken into account in the decision on the suspensive effect.
Continuation declaratory action
The admissibility of an action for a declaration of continuation filed in accordance with serves to ensure the effectiveness of legal protection. “The admissibility of a request for legal protection depends on the existence of a legitimate interest in the pursuit of a subjective right. In order that legal protection is not restricted unreasonably, no requirements that cannot be justified for material reasons may be made of such a need for legal protection "
Individual dogmatic questions
Applicability of Art. 19 Para. 4 GG
Applicability to judicial decisions?
With regard to violations of the right to be heard within the meaning of103.1 of the , the First Senate of the Federal Constitutional Court demanded that, contrary to the previous case law of the Second Senate, Article 19.4 of the Basic Law should also be applied to judicial decisions. The plenary session of the Federal Constitutional Court rejected this on the grounds that sufficient legal protection was guaranteed in connection with the general right to justice:
- "Art. 19 para. 4 GG is understood in the case law and some of the literature to the effect that the term of public authority used there is to be interpreted restrictively and only to be applied to the executive authority. This is regularly put into the formula that the Basic Law guarantees legal protection by the judge, but not against the judge [...]. The second part of this formula is increasingly criticized [...]. To justify the criticism, it is stated, among other things, that the concept of public authority is broad and includes case law. Neither the history nor the sense and purpose of Article 19.4 of the Basic Law justified a restrictive interpretation limited to legal protection against the executive.
- b) The appeal to the plenary session by the First Senate does not give rise to any deviation from the previous interpretation of Article 19 (4) of the Basic Law. The task of the previous legal opinion of the Federal Constitutional Court on legal protection in the event of significant violations of the fundamental procedural right under Article 103.1 of the Basic Law, which the First Senate is striving for, does not require that the scope of Article 19.4 of the Basic Law be redefined. Because this norm does not contradict the assumption that the general right to justice guarantees legal protection under partly different factual conditions (cc). The restrictive interpretation of the concept of public authority in Article 19.4 of the Basic Law (aa) is in any case not subject to any reservations under the aspect of the rule of law if the general right to the grant of justice enables legal protection even in the cases not covered by Article 19.4 of the Basic Law insofar as this is required by the rule of law (bb). "
Applicability to Laws?
According to the prevailing view, the expression “acts of public authority” in19.4 of the Basic Law refers only to acts of the executive, but not to legislative acts. The Federal Constitutional Court explains:
- “According to recte : can] that the law violates his rights, whereby in particular, violations of fundamental rights will be in question. " (3) and (1) of the Basic Law, the law is the basis of the judicial decision. If, as an exception, it should be their subject, this must be clearly evident from the provision which such an action is intended to grant. (4) of the Basic Law does not contain a clear regulation in this respect. The constitutional review of laws by the constitutional court is regulated in more detail in the Basic Law, especially in (1) No. 2 and 1 of the Basic Law. These regulations must be regarded as exhaustive, […]. It cannot be assumed that in addition to the constitutional review, which is tied to certain conditions [...], every citizen can appeal to the ordinary courts against a law with the assertion [
This view can also be based on the fact that in the original version of the Basic Law no individual constitutional complaint was provided, but the Parliamentary Council had left the regulation of this question to the ordinary legislature. Only later was the provision added in GG that the Federal Constitutional Court also "[decides] on constitutional complaints that can be raised by anyone claiming that the public authority in one of its fundamental rights or in one of its basic rights listed in para 4, , , , and to be violated. "
Differentiation between primary and secondary legal protection
A distinction is made between primary and secondary legal protection:
- Primary legal protection is the legal protection that is granted against the contested or against the rejection of a specific measure of public authority itself. The courts of administrative jurisdiction , social jurisdiction or financial jurisdiction are responsible for this in accordance with the respective procedural law ( administrative court code , social court law , financial court code ).
- Secondary legal protection refers to the legal protection that is granted to the citizen if the primary legal protection has been unsuccessful for him and he has suffered damage or other disadvantage as a result of the measure of public authority, which he does not have to bear himself according to the principles of state liability law. He can have the state replace (liquidate) this; the ordinary courts are often responsible.
In 2019, the Deutsche Umwelthilfe (DUH) applied for compulsory detention against the Bavarian Prime Minister. The European Court of Justice found that there was no legal basis that had to be created if one did not want to violate the requirement of effective legal protection.
- For details on Article 19, Paragraph 4 of the Basic Law: Federal Constitutional Court, decision of the plenum of April 30, 2003 - 1 PBvU 1/02 -, BVerfGE 107, 395 , online .
- Dieter Lorenz : The requirement of effective legal protection of Art. 19 Abs. 4 GG . In: Legal training (JURA) 1983, p. 393.
- Rainer Pitschas : The struggle for Article 19, Paragraph 4 of the Basic Law . In: Zeitschrift für Rechtssppolitik (ZRP) 1998, p. 96.
- Edzard Schmidt-Jortzig : Effective legal protection as the core of the rule of law according to the Basic Law . In: Neue Juristische Wochenschrift (NJW) 1994, p. 2569.
- This is how the definition in Der Brockhaus Law relates . Understanding the law, knowing your rights, Brockhaus: Leipzig / Mannheim, 2005, 573 specifically on the German regulation: "Legal recourse guarantee is the provision contained in Paragraph 4 of the Basic Law that the R. is open to those who are ( German) public authority is violated in its rights ". Annegerd Alpmann-Pieper et al. (Ed.), Alpmann Brockhaus Study Lexicon Law , 3rd edition: 2010, 971: “Legal recourse guarantee: guarantee of legal recourse against every act of public authority” ( Paragraph 4, Basic Law). The same finally applies to Walter Schmitt Glaeser, article “Rechtssweggarantie” , in: Horst Tilich / Frank Arnold (ed.), German Legal Lexicon . Bd. 3, Beck: München, 3rd edition: 2001, 3507 - 3509 (3507): “Legal recourse guarantee is called the regulation in Art 19 IV 1 GG; [...]. "
- The Brockhaus law . Understanding the law, knowing your rights, Brockhaus: Leipzig / Mannheim, 2005, 388: "The right of the individual to be able to take advantage of the state courts unhindered in order to fully safeguard his rights and to allow them to make a decision on the matter."
- Federal Constitutional Court, judgment of the Second Senate of July 18, 2005 - 2 BvR 2236/04 -, " European arrest warrant ", BVerfGE 113, 273 (310) , Rn. 102, online .
- Federal Constitutional Court, judgment of the Second Senate of July 18, 2005 - 2 BvR 2236/04 -, " European arrest warrant ", BVerfGE 113, 273 (310) , Rn. 103, online .
- Federal Constitutional Court, Chamber decision of October 26, 2011 - 2 BvR 1539/09 -, Rn. 26, online .
- This is confirmed by the decision of the Federal Constitutional Court of November 14, 2016, 2 BvR 31/14 http://www.lto.de/recht/nachrichten/n/bverfg-beschluss-2bvr3114-fluechtling-klage-subsidiaerer-schutz- appeal legal process /
- Federal Constitutional Court, Chamber decision of August 22, 2011 - 1 BvR 1764/09 -, Rn. 30, online .
- Federal Constitutional Court, Chamber Decision of October 26, 2011 - 2 BvR 1539/09 -, Rn. 28, online .
- Federal Constitutional Court, judgment of the Second Senate of July 18, 2005 - 2 BvR 2236/04 -, " European arrest warrant ", BVerfGE 113, 273 (310) , online .
- Federal Constitutional Court, judgment of the Second Senate of July 18, 2005 - 2 BvR 2236/04 -, " European arrest warrant ", BVerfGE 113, 273 (310) , Rn. 104, online .
- BVerfG, decision of November 28, 2011 - 2 BvR 1181/11 - juris
- BVerfG, decision of May 31, 2011 - 1 BvR 857/07 = NVwZ 2011, 1062
- BVerfG, decision of September 27, 2011 - 1 BvR 232/11 - juris Os.
- BVerfG, decision of September 27, 2011 - 1 BvR 232/11 - juris Os.
- Federal Constitutional Court, Chamber Decision of August 3, 2011 - 2 BvR 1739/10 -, Rn. 28, online .
- Federal Constitutional Court, decision of the First Senate of May 16, 1995 - 1 BvR 1087/91 -, “ Crucifix Decision ”, BVerfGE 93, 1 (13) , Rn. 28.
- VG Würzburg, decision of April 6, 2011 - Az. W 6 S 11.210 para. 28 ff.
- BVerwG, decision of June 12, 2008 - 7 B August 24
- BVerfG, decision of April 23, 2009 - 1 BvR 3405/08 para. 14th
- § 57 Provisional Legal Protection / II. "Eil-Eil-Rechtsschutz": Interim decision / "Suspension decision" haufe.de, accessed on September 12, 2018
- Federal Constitutional Court, Chamber Decision of February 21, 2011 - 2 BvR 1392/10 -, Rn. 16, online .
- BVerfG, decision of February 8, 2011 - 1 BvR 1946/06 - NVwZ-RR 2011, 405 = juris Rn. 20th
- Federal Constitutional Court, decision of the First Senate of January 16, 2002 - 1 BvR 10/99 -, BVerfGE 104, 357, online .
- Federal Constitutional Court, decision of the plenum of April 30, 2003 - 1 PBvU 1/02 -, BVerfGE 107, 395 , online .
- Federal Constitutional Court, decision of the plenary of April 30, 2003 - 1 PBvU 1/02 -, BVerfGE 107, 395 , paragraph no. 22 f., Online .
- Annegerd Alpmann-Pieper et al. (Ed.), Alpmann Brockhaus Study Lexicon Law , 3rd edition: 2010, p. 971; Walter Schmitt Glaeser, article "Rechtssweggarantie" , in: Horst Tilich / Frank Arnold (eds.), Deutsches Rechts-Lexikon , vol. 3, Beck, Munich, 3rd edition 2001, 3508 with reference to BGHZ 22, 33 for the Contrary opinion.
- Federal Constitutional Court, judgment of the Second Senate of June 25, 1968 - 2 BvR 251/63 -, BVerfGE 24, 33 (50)
- On p. 51 of the BVerfG decision ( BVerfGE 24, 33 (51) ) there is further evidence of literature on this question. The court upheld its opinion in BVerfGE 45, 297 (334) .
- Richard Bäumlin / Helmut Ridder, [Commentary on] Art. 20 Paragraphs 1 - 3 III . Rule of law, in: Richard Bäumlin et al., Commentary on the Basic Law for the Federal Republic of Germany . Volume 1. Art. 1 - 20 (series of alternative comments, edited by Rudolf Wassermann), Luchterhand: 2., revised. Edition: 1989, 1340 - 1389 (1370, RN 37): “The question of whether and, if so, in what way the BVerfG should be able to be invoked because of the violation of fundamental rights, they [the members of the Parliamentary Council ] have to decide left by the Federal Constitutional Court, so the answer - in contrast to the constitutional safeguarding of the legacy of the rule of law culture through the basic judicial rights - is not regarded as claiming the rank of formal constitutional law. "
- Dominik Hutter: Diesel driving ban in Munich: Probably no imprisonment for Söder. Retrieved January 8, 2020 .